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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member
Bajaj Allianz General Insurance Co. Ltd. —Petitioner
Versus
Astha Cement Pvt. Ltd. —Respondent
Revision Petition No. 2765 of 2015
(Against the Order dated 02/07/2015 in Appeal No. 804/2012 of the State Commission Rajasthan)
Decided on 18.8.2020
For the Petitioner:Ms. Sunanda Nimisha, Advocate
For the Respondent:Mr. Aditya Narain, Mr. Arnav Narain, Ms. Anushree Narain, and Mr. Mishra Raj, Advocates
IMPORTANT POINT
In case of breach of a fundamental term of insurance policy, claim can be repudiated by Insurer.
Headnote:
Consumer Protection Act, 1986—Section 21[Consumer Protection Act, 2019—Section 51]—Insurance—Theft of Truck—State Commission allowed appeal and directed petitioner company to pay a sum of Rs.5,40,000/- to complainant along with 9% interest and cost of litigation quantified at Rs.20,000/-—Driver of vehicle failed to take reasonable care with respect to safety of vehicle, he having left vehicle unlocked and also having left keys inside vehicle—As a result, it became possible for person who committed theft of vehicle not only to get inside truck but also drive it away, using keys which have been left in vehicle—Complainant committed a breach of a fundamental term of insurance policy as driver employed by him left truck unlocked and also left keys inside vehicle while going in a dhaba/restaurant for taking his dinner—Insurer was justified in repudiating claim—Impugned order set aside and Consumer Complaint dismissed. (Paras 4, 7 and 10)
Result: Revision Petition disposed of.
ORDER (ORAL)
V.K. Jain, Presiding Member —The complainant / respondent owned a truck which he had got insured with the petitioner company for the period from 30.3.2010 to 29.3.2011. The vehicle was stolen when parked outside a restaurant / dhaba in the night of 29.12.2010. The driver of the truck had gone inside the dhaba / restaurant, to take his dinner, after parking the vehicle outside the said dhaba / restaurant. When he came out, the vehicle was found missing. An FIR was lodged by him. The truck could not be recovered and therefore, a claim was lodged with the insurer. Vide letter dated 17.9.2011, the insurer sought clarification from the complainant on the following observations:
“This is with reference to your above reported theft claim, after scrutiny of the documents submitted by your good-self following observation has been made:
1. At the material time of theft of your vehicle the vehicle was unlocked and the same was in drivable condition which resulted into theft of your aforesaid vehicle and the same amounts to gross negligence of your part / users part.
By being gross negligent you / user has violated the policy terms and conditions namely condition which stipulated as under:
“The Insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain in in efficient condition.”
2. 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.”
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 r
