NEW INDIA ASSURANCE CO LTD Vs. AJIT KUMAR

JUDGEMENT

(1.) This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 by the petitioner, New India Assurance Co. Ltd. (hereinafter referred to as 'Insurance Company') against the impugned order dated 10.03.2008 passed by the Delhi State Consumer Disputes Redressal Commission (for short 'the State Commission') in FA No. FA-07/849, "M/s. New India Assurance Co. Ltd. versus Ajit Kumar", vide which while allowing the appeal, the order passed by District Consumer Disputes Redressal Forum, Janakpuri allowing the complaint filed by the respondent was slightly modified and the awarded amount of Rs.2.65 lakh by the District Forum was reduced by 5% on account of depreciation of the value of the vehicle in question.

(2.) Brief facts of the case as contained in the complaint are that the respondent/complainant is doing trading business of communication accessories at Suneja Tower-I, District Centre Janakpuri, New Delhi. He got his Maruti Zen Car bearing registration number DL-09-CE-8578 insured with the petitioner/OP vide policy no. 311700/31/04/01/00001575 covering the period from 29.06.2004 to 28.06.2005 for a sum of Rs.2.65 lakh on payment of a premium amount of Rs.9,841/-. It has been stated by the complainant that on 18.02.05 at about 11:30 p.m., he was coming back from his office at District Centre Janakpuri by the above-said car to his residence at C Block, Janakpuri. When he reached near Bharti College, he felt a strong need for urination. He stopped his car on the left side of the road, when there was no one in the vicinity at that time. The complainant switched off his car, took out the ignition key and went for urination. When he returned back, he did not find his car there. The briefcase of the complainant was kept in the car, which contained important documents, including a set of documents of the car as also the second key of the car. The complainant informed the local Police about the theft of the car and also the financing bank and the respondent insurance company. An FIR no. 85/05 was registered at Police Station Janakpuri, New Delhi. On 25.5.2005, he submitted the requisite claim papers vide claim No. 311700/31/04/0652 with the respondent after fulfilling all the requirements. However, the claim was repudiated vide letter dated 24.08.2006 on the recommendations of the investigator. The complainant filed the consumer complaint in question, which was allowed by the District Forum vide order dated 24.09.2007 and a sum of Rs.2.65 lakh was allowed to be given to him, besides a sum of Rs.7,000/- as compensation for harassment. An appeal against this order was allowed by the State Commission on 10.03.2008 and the said order was slightly amended and the State Commission reduced the awarded amount of Rs.2.65 lakh by 5% on account of depreciation and maintained the rest of the order. The present revision petition has been filed against this order of the State Commission.

(3.) At the time of arguments before us, learned counsel for the petitioner Insurance Company stated that the complainant/respondent, as per his own version had left the car unlocked on road and hence violated the terms and conditions of the insurance policy in question. It had been stated in the general conditions to the policy that, "the insured shall take all reasonable steps to safeguard the vehicle from loss or damage .". In his statement recorded by Shri Sanjeev Nijhawan, investigator, appointed by the petitioner, the complainant stated that, "at the time of incident, the key was in the car which has been taken away with car and duplicate key is with me." In the complaint, however, he stated that he had taken away the ignition key and went for urination and the second key of the car was there in the briefcase, kept inside the car. This was an apparent contradiction in the stand taken by the complainant. Learned counsel has drawn our attention to the order passed by this Commission in "The New India Assurance Co. Ltd. versus T.V. Sarathi" [RP No. 2555 of 2005 dated 19.03.2009], in which it has been stated that the insurance company would not be liable to loss/damage of the unattended property, if the insured was found negligent in safeguarding the said property. Further, in another case, "Jagdish Parshad versus ICICI Lombard General Insurance Co. Ltd.", 2013 2 CPJ 578 (NC)], the National Commission had taken a similar view saying that negligence on the part of the complainant leaving the vehicle unattended and unlocked was sufficient to hold that there was violation of terms and conditions of the policy. The facts in this case were almost similar to the present case as the driver and cleaner had left the vehicle unattended on road, with keys within the said vehicle for urination and in the meanwhile, some unknown persons had taken away the said vehicle.