NEW INDIA ASSURANCE COMPANY LTD. Vs. ASHOK KUMAR

JUDGEMENT

(1.) VEHICLE being insured on the date of accident with the appellant is not in dispute. Therefore, detail facts noted in the order of the District Forum below are not being repeated.

(2.) CASE of the complainant was that the said vehicle was stolen between 5.4.2003 to 8.4.2003 and report was lodged at Police Station, Indora, District Kangra, vide Report No. 15 of 2003 on 10.4.2003. When claim was lodged with the appellants, the same was repudiated on the ground that no proper FIR was lodged as it is not a case of theft but mere misplacement. No section of IPC was involved in it. Mere details by the respondent in his letter dated 10.3.2004 are totally flimsy. There being deficiency of service, a number of reliefs were claimed by the respondent. This claim was resisted on a number of grounds by the appellant during the course of proceedings before the District Forum. After conclusion of hearing, complaint was allowed when the District Forum below ordered the payment of Rs. 2,85,000 to the respondent with interest @ 6% per annum from the date of filing of the complaint (4.6.2004) till its realization, along with cost of litigation in the sum of Rs. 1,000 for causing mental pain, agony and inconvenience. This amount was ordered to be deposited within 30 days after receipt of the copy of the said order. Hence, this appeal. Mr. Praneet Gupta raised three grounds in support of this appeal. These are, (a) that this is a case of gross negligence on the part of the driver of the vehicle, inasmuch as that because ignition keys of the vehicle when demanded from the owner were not delivered meaning thereby that the driver had left the vehicle with keys inside the vehicle, as such his client was not liable for payment of any amount much less as ordred by the District Forum below; (b) that IMT 3 of the Insurance policy subject to which this vehicle was insured by his client is clearly attracted in this case, as such this appeal deserves to be allowed; and (c) that the vehicle was being used for commercial purpose, therefore, neither the respondent is a 'consumer', nor the case was covered under the provisions of the Consumer Protection Act, 1986, hereinafter referred to as the 'Act'. Therefore, the appeal deserves to be allowed on this ground as well.

(3.) SO far the assumption of the ground of negligence due to non -delivery of ignition keys is concernd, we find no substance in the submission of Mr. Gupta. Reason being that there is no evidence produced by the appellants to show that the ingnition keys had infact been left by the driver inside the vehicle, therefore, it is mere hypothesis and nothing more. With a view to buttress this submission, Mr. Gupta further urged that Surveyor had demanded the ingition keys of the vehicle, but those were not provided to him. In our opinion even if this is case of misplacement and theft as was argued on behalf of the appellants, still there is no presumption these were left in the vehicle which resulted in the same being stolen. Here the stand of the appellant in its reply is significant that this was not a case of theft but was of misplacement. This pleading cuts at the root of the case of the appellant because it is not the case of the appellants that the respondent retrieved the allegedly misplaced vehicle. Accordingly, we find no substance in this submission and this question is decided against the appellant.