Justice (Retd.) Surjit Singh, President (Oral)
1. This is an opposite parties appeal against the order dated 21.10.2013, of learned District Consumer Disputes Redressal Forum, Solan, whereby a complaint, under Section 12 of the Consumer Protection Act, 1986, filed against them by respondent-Baldev Singh, has been allowed and they have been directed to pay a sum of Rs.8.93 lacs, with interest at the rate of 9% per annum, on account of insurance claim, and also to pay Rs.5,000/-, as compensation.
2. Respondent-Baldev Singh owned a truck, which was insured with the appellants, in the sum of Rs.8.93 lacs, for the period from 17.07.2007 to 16.07.2008. On the night intervening 5th and 6th March, 2008, the truck was parked outside the residence of the respondent-Baldev Singh, by the driver engaged by him (the respondent-complainant). Ignition key of the vehicle was not removed. However, the cabin was locked. On the next morning, i.e. on 06.03.2008, truck was found missing. Report of theft was lodged at Police Station, Kasauli on 06.03.2008 itself. Intimation of the theft was given to the appellants also. An Investigator was deputed by the appellants, who reported that the theft had taken place because of carelessness and negligence on the part of the insured and/or his driver, because the ignition key of the vehicle had been left inside the cabin, which made it easier for the thief to decamp with the truck. Consequently, the claim was repudiated.
3. Respondent-complainant felt aggrieved by the repudiation of his claim and filed a complaint, under Section 12 of the Consumer Protection Act, 1986. Appellants contested the complaint. They raised a number of preliminary objections, including that of limitation. On merits, it was stated that there was breach of condition of the policy, namely due care was to be taken by the insured to prevent theft of the vehicle, but not only that he did not take such a care; rather he facilitated the theft of the vehicle, by leaving the ignition key in the vehicle itself.
4. Learned District Forum has allowed the complaint and passed the impugned order.
5. We have heard learned counsel for the parties and gone through the record.
6. It is submitted on behalf of the appellants that claim had been closed, vide letter dated 22.07.2008, which was sent by registered post to the respondent-complainant on that very day and that letter of closure was followed by a letter of repudiation dated 29.07.2008, but the complaint was filed on 06.08.2010 and was, thus, barred by limitation, on the face of it. Learned counsel submits that there being no application for condonation of delay, the District Forum had no authority to entertain it and to pass the impugned order.
7. Respondent-complainant in para-10 of the complaint stated that the cause of action accrued initially on 05.03.2008, when the vehicle was stolen, then on 29.07.2008, when letter, Annexure-J, repudiating the claim was issued and finally on 28.08.2008, when letter, Annexure-K, informing him that the claim had been closed, was issued.
8. Appellants in para-7 of preliminary submissions of the reply stated that claim was closed, vide letter dated 22.072008, copy Annexure-OP3, and that this letter was followed by letter of repudiation dated 29.07.2008, Annexure-J. Respondent-complainant did not file any rejoinder.
9. Annexure-K, relied upon by the respondentcomplainant, bears date 20th August, 2008, written in hand inside the circular seal impression of the appellants at the bottom. This is the photostat copy of the letter regarding closure of claim. Appellants have also filed a photostat copy of this very letter from their record, which is Annexure-OP3. In this photostat copy, Annexure-OP3, date 20th August, 2008 is not written inside the seal impression of the appellants. Alongwith this Annexure-OP3, appellants have relied upon a postal receipt, photostat copy of which appears on the top of Annexure-OP3. As per this postal receipt, the letter, copy of which is Annexure-OP3, was sent by registered post to the respondent-complainant on 22.07.2008. The postal receipt photocopied on the top of Annexure-OP3 suggests that the date 20th August, 2008 appearing in Annexure-K might be an act of interpolation on the part of the respondentcomplainant, to bring the complaint within limitation. This is particularly so, when in the copy relied upon by the appellants, i.e. Annexure-OP3, date 20.08.2008 does not appear in the seal impression.
10. Complaint was filed on 06.08.2010, or say on expiry of two years time limit, prescribed by law, to be counted as per para-10 of the complaint of the respondent himself, from the date of the issue of the aforesaid two letters, Annexures-J and K, which are dated 29.07.2008 and 22.07.2008, respectively, as demonstrated herein-above. No application for condonation of delay was moved by the respondent-complainant.
11. Above stated position apart, even on merits, the respondent-complainant does not have a strong case. Vehicle was parked by the side of the road near the house of the respondent-complainant for the night. Ignition key was left inside the drivers cabin. Condition-5 of Article III of the terms and conditions of the policy, which is available on the record of the appeal, required the insured (respondentcomplainant) to take reasonable steps to safeguard the vehicles from loss or damage. By leaving the ignition key inside the cabin, the respondent-complainant/or his driver not only caused breach of this condition, but also made it easier for the thief to steal the vehicle.
12. Learned District Forum has placed reliance upon a precedent of this Commission in œSom Raj versus National Insurance Company, F.A. No.39 of 2008, decided on 26.10.2009?, to hold that leaving of key inside the cabin does not justify repudiation of claim by the insurer. Learned District Forum has also placed reliance upon a precedent of the Honble National Consumer Disputes Redressal Commission in Sukhwinder Singh versus Cholamandlam MS Revision Petition No.375 of 2013, decided on 30.08.2013, in which the driver of the vehicle parked the vehicle by the side of the road and went to ease himself, leaving the key in the ignition hole.
13. This Commission in œMangal Singh versus National Insurance Company Ltd.?, F.A. No.27 of 2014, decided on 03.05.2014, upheld the repudiation of insurance claim by the insurer on the ground that key had been left inside the car by the insured. In that case, car was parked by the side of the road and the insured and the driver of the car went to the house of the daughter of the insured to stay there for the night. In this case also, the vehicle was parked by the side of the road near the house of the respondent-complainant for the night and the key was left inside the cabin.
14. The precedent of Honble National Commission relied upon by the learned District Forum, in our considered view, also does not support the learned District Forums view. The facts of the case before the Honble National Commission were that the driver parked the vehicle by the side of the road and went to ease himself. The Honble National Commission observed that leaving key in the ignition of the car, on all occasions, cannot be termed so serious a breach as to disentitle the insured from seeking claim under the policy. In other words, the Honble National Commission held that it is only in the situations like the one where the driver goes by the side of the road to ease himself that the leaving of the key in the ignition can be excused.
15. In view of the above stated position, appeal is allowed and impugned order set aside. Consequently, the complaint filed by the respondent-complainant is dismissed. In view of acceptance of appeal, M.A. No.361/2014, is also disposed of.
16. A copy of this order be sent to each of the parties, free of cost, as per Rules.