BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. v. ASTHA CEMENT PVT. LTD.

"The Insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain in in efficient condition."

You have not arranged the meeting of your driver with the investigator till date. In view of the aforesaid reason and also since no original keys have been submitted to our investigator during the investigation please clarify within seven days from the receipt of this letter as to why your claim should not be repudiated."

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2. The complainant responded to the said letter on 22.9.2011 and the reply given by him reads as under:

"I beg to state my driver after parking the vehicle in a Hotel, came down and after checking the tyre has directly went to the hotel and sat down to have his food wherein he forgot to lock the vehicle and the key was left in the vehicle itself. The second key is already submitted at your Alwar Office on 13.6.2011." The claim was repudiated vide letter dated 26.9.2011 as the explanation given by the complainant was not found to be satisfactory.

3. Being aggrieved from the repudiation of the claim, the complainant approached the concerned District Forum by way of a consumer complaint. The petitioner company resisted the claim, primarily on the ground on which the claim had been repudiated.

4. The District Forum having dismissed the consumer complaint, the complainant approached the concerned State Commission by way of an appeal. Vide impugned order dated 02.7.2015, the State Commission allowed the appeal and directed the petitioner company to pay a sum of Rs.5,40,000/- to the complainant along with interest @ 9% per annum and the cost of litigation quantified at Rs.20,000/-.

5. Being aggrieved from the order passed by the State Commission, the petitioner company is before this Commission by way of this revision petition.

6. It is evident from a perusal of the letter dated 22.9.2011 sent by none other than the complainant company itself to the insurer, in reply to its letter dated 17.9.2011, that the driver had not locked the truck before going to the restaurant for taking dinner and the keys of the truck were also left by him inside the vehicle. Though, the learned counsel for the complainant submits that the aforesaid letter dated 22.9.2011 was procured by the petitioner company from the complainant, no such averment is found in the consumer complaint. Hence the submission made by the learned counsel cannot be accepted.

7. The driver of the vehicle ought to have not only locked the vehicle; he should also have taken the keys of the vehicle with him while going inside the restaurant for taking dinner. The driver of the vehicle failed to take reasonable care with respect to the safety of the vehicle, he having left the vehicle unlocked and also having left the keys inside the vehicle. As a result, it became possible for the person who committed theft of the vehicle not only to get inside the truck but also drive it away, using the keys which have been left in the vehicle. It is also obvious that the vehicle was not visible to the driver form the table where he was taking dinner because had the truck been visible from his table, he would certainly has raised an alarm and

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come out of the restaurant when he saw the thief entering the vehicle and trying to take it away.

8. The issue involved in this matter came up for consideration of this Commission in

RP/1239/2018 TATA AIG General Insurance Co. Ltd. Vs. Mahendra Singh & Anr. decided on 21.5.2019 and the following view was taken:

"8. A perusal of the statement of truck driver Sh. Pratap Singh, which is available on page no. 89-90 of the paper-book, would show that after parking the vehicle, he alongwith the conductor, went to sleep at another place. While leaving the truck in the parking, the driver did not lock the same and left the key of the truck in its ignition. As a result, it became an invitation to a person passing through the vehicle to take advantage of the aforesaid negligence on the part of the truck driver, and commit theft of the truck using the key which the driver had left in its ignition. Since both the driver and conductor had left the vehicle unattended for about four hours and there is nothing in the statement of the driver to even indicate that the truck was visible to them at the place where they had gone to sleep, neither the truck nor the conductor could have kept a check on the truck after they had left it unattended. In any case, after having gone to sleep for about four hours, it would not have been possible for them to keep an eye on the truck. Therefore, it can hardly be disputed that they had failed to take reasonable steps to safeguard the insured vehicle from loss or damage. They had thereby contravened condition No.5 of the insurance policy.

9. A similar issue recently came up for consideration of this Commission in RP No.1893 of 2016 & RP No.3198 of 2016 Cholamandalam MS General Insurance Company Ltd. Vs. Ashish Kumar Walecha and Ashish Kumar Walecha Vs. Manager, Cholamandalam MS General Insurance Company Ltd. & Anr. decided on 20.04.2017. In Cholamandalam MS General Insurance Company Ltd. (supra), the complainant had left the key of the vehicle in the ignition while going to meet a friend residing nearby. When he returned after 30 minutes, the vehicle was found missing. The theft was later reported to the police and intimation of the theft was also given to the insurer. The claim was rejected by the insurer vide a repudiation letter dated 09.07.2012 which read 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 -

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

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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".

Being aggrieved from the rejection of the claim, the complainant approached the concerned District Forum by way of a consumer complaint. The complaint having been dismissed by the District Forum, but having been partly allowed by the State Commission, the insurer approached this Commission by way of a revision petition. This Commission inter-alia observed and held as under:

"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:

"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

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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."

9. The learned counsel for the complainant relies upon the decision of the Hon'ble Supreme Court in National Insurance Company Ltd. Vs. Nitin Khandelwal IV (2008) CPJ 1 (SC) decided on 08.5.2008 as well as the decision of this Commission in RP/3119 of 2016 New India Assurance Company Limited Vs. Pravin Krushna Tatkari, decided on 13.7.2017.

However, neither of the above referred two decisions applies to a situation where the driver not only leaves the truck unlocked, but also leaves the keys inside the vehicle, thereby giving open invitation for committing theft of the vehicle.

10. The complainant committed a breach of a fundamental term of the insurance policy as the driver employed by him left the truck unlocked and also left the keys inside the vehicle while going in a dhaba/restaurant for taking his dinner. The insurer therefore, was justified in repudiating the claim. The impugned order cannot be sustained and is hereby set aside. The Consumer Complaint is consequently dismissed, with no order as to costs.

11. The amount deposited by the petitioner company in compliance of the interim order of this Commission be released to the petitioner along with interest which may have accrued on that amount.

The revision petition stands disposed of.

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

V.K. JAIN

PRESIDING MEMBER

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