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Lokesh Kapoor v/s National Insurance Co. Ltd., H.P. & Another

    Revision Petition No. 4369 of 2014

    Decided On, 03 November 2021

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. C. VISWANATH
    By, PRESIDING MEMBER

    For the Petitioner: Arjun Jain, Anushree Narain, Advocates. For the Respondents: Philomina Thomas, Advocate.



Judgment Text

1. The present Revision Petition has been filed by the Petitioner against order dated 07.08.2014 passed by the State Consumer Disputes Redressal Commission, Himachal Pradesh (for short “State Commission”) in First Appeal No. 185 of 2014.

2. Along with the Revision Petition, IA/852/2014, an application for condonation of delay of 70 days has also been filed by the Petitioner. However, as per computation done by the Registry, there is a delay of 30 days. For the reasons mentioned in the application and in the interest of justice, IA/852/2014 is allowed and delay condoned.

3. The case of the Complainant/ Petitioner is that he purchased an Indigo CS-LS TDI car, bearing Chassis No. MAT607146CWE31049 and Engine No.475IDT14EXYP35248, on 22.10.2012 for a consideration of Rs.5,44,111/- from Hi-Tech Satluj Motors Pvt. Ltd., NH-21, Lunapani, Distt. Mandi, Himachal Pradesh. The vehicle was allotted temporary number HP-33A-9299 which was insured with the Opposite Party, vide Policy No.25331031126120065990, for Rs.5,16,905/- by paying premium of Rs.18,814/- on 22.10.2012 and valid from 22.10.2012 to 21.10.2013. On 31.10.2012, the Complainant had gone to the election office of Bhartia Janta Party at Bhangrotu, Tehsil Sadar, District Mandi, H.P., and parked the vehicle near the election office. The Complainant, in haste left the keys inside the car and in that moment the door got closed which automatically locked the vehicle. The house of the Complainant was at a distance of 5 km, so he decided to bring the second key by evening and joined the election campaign. The Complainant passed Bhangrotu around 11:40 A.M and noticed that his vehicle was parked at the same place. When he came back in the evening with second key from his house, the vehicle was found missing. The Complainant searched for the vehicle at his own level but when he failed to trace it, lodged FIR No.321/2012, dated 01.11.2012 at Police Station Bahl, Mandi, H.P. Intimation of theft was given to the Opposite Party who appointed Surveyor. All the documents sought by the Surveyor were supplied to him. The Opposite Party, vide letter dated 27.12.2011, sought some queries from the Complainant which was duly replied by the Complainant, vide letter 15.01.2013. The Opposite Party, vide letter dated 12.03.2013, repudiated the claim on the ground of negligence of the Complainant. In the repudiation letter, Opposite Party referred the judgement of this Commission in “Devinder Kumar vs. NIC”, RP No.3840/2011. Aggrieved by the Repudiation, the Complainant filed the Consumer Complaint No.132 of 2013 before the District Forum with following prayer: -

i. The opposite-party may kindly be directed to pay Rs.5,44,111/- of the cost of vehicle to the complainant along with Insurance premium of Rs.18,814/- along with interest @ 18 % P.A w.e.f. 31.10.2012 till payment;

ii. The Complainant may kindly be awarded the compensation to the tune of Rs.50,000/- from the opposite-parties, on account of deficiency in service and causing harassment, mental tension etc. to the complainant; besides the damages to the tune of Rs.2 Lac/-; and/or

iii. Any other relief, to which the complainant may be found entitled in the facts and circumstances of the case may also kindly be granted along with the costs of the complaint to the tune of Rs.20,000/- in the interest of justice and justice be done.

4. The Complaint was resisted by the Opposite Party/ Respondent by filing reply stating that the Complaint was not maintainable as liability of Insurance Company was contractual. It was alleged that the Complainant violated the terms and conditions of the Policy. The Complainant failed to take reasonable precaution/care to protect the insured car as 'Key of Vehicle' was left in ignition of vehicle and vehicle was left unattended for 13 hours (From 6.20 AM to 7.30 PM) on the road /NH-21. The claim was, therefore, not payable.

5. The District Forum after hearing both the parties and perusing the record found that the Opposite Party failed to prove that the Complainant had not taken due care of the vehicle. It was also observed that there was no fundamental breach of the terms & conditions of the Policy. The repudiation was, therefore, unjustified, illegal and amounted to deficiency in service. The order of the District Forum reads as follows: -

“In the light of above discussion, the complaint is allowed and the opposite party is directed to pay Rs.5,44,111/- to the complainant along with interest at the rate of 9% per annum from the date of institution of the complaint till realization. Opposite party Is further directed to pay to the complainant Rs.5,000/- on account of compensation for harassment and Rs.3,000/- as costs of complaint.”

6. Aggrieved by the order of the District Forum, the Opposite Party filed First Appeal No.185 of 2014 before the State Commission. The State Commission, vide impugned order dated 07.08.2014, allowed the Appeal, set aside the order of the District Forum and dismissed the Complaint.

7. Aggrieved by the order of the State Commission, the Petitioner preferred this Revision Petition before this Commission with the following prayer:-

“It is, therefore, most respectfully prayed that present First Appeal may very kindly be allowed and the impugned judgment dated 07.08.2014, passed in F. A. No. - 185 / 2014, passed by the H. P. State Consumer Disputes Redressal Commission may very kindly set aside & quashed and C. C. No.: 132 / 2013, filed in the District I Consumer Disputes Redressal Forum, Mandi, District - mandi, H.P. may be ordered to be allowed as prayed for in the original complaint.”

8. Heard Learned Counsel for the Parties and carefully perused the record. The Learned Counsel for the Petitioner/Complainant submitted that the impugned order suffers from illegality as the State Commission failed to appreciate the facts in correct perspective. It was also submitted that the State Commission did not appreciate the fact that the Complainant was never supplied the terms & conditions of the Insurance Policy. Even if there was violation of the terms & conditions of the Policy, the Opposite Party was legally bound to indemnify the loss on “non-standard basis.” He also submitted that the State Commission had dealt with the matter strictly like a criminal case, which was not justified.

9. Learned Counsel for the Respondent/Opposite Party submitted that the theft took place on 31.10.2012 and intimation to the Opposite Party was given on 27.11.2012, in violation of terms & conditions of the Policy. It was also submitted that the Complainant was fully aware that the key was left in the ignition hole at 6.20 am and the house of the Complainant was 5 km away from the car. He, however, did not care to bring the second key from his house immediately. Rather he came back with the second key from his house at 7.30 pm, which proves the carelessness and negligence on the part of the Complainant.

10. Brief facts of the case are that the Petitioner got his car insured with Respondent. On 31.10.2012 he parked his car near Government Senior Secondary School, Bhangrotu in the morning and in haste he forgot the keys inside the car and the door got locked automatically. When he came back with the second key in the evening, the vehicle was found to be missing. The Opposite Party repudiated the claim on the ground that the Complainant failed to take reasonable care of the vehicle.

11. The first contention of the Petitioner/Complainant is that he was never supplied the copy of the terms & conditions of the Insurance Policy. This has not been the case of the Complainant in the Complaint. He had taken this plea for the first time in Appeal before the State Commission. Petitioner is not permitted to set out a new case, which he has not made in the Complaint. Petitioner had further contended that the Opposite Party was legally bound to indemnify the loss on “non-standard basis.” The Opposite Party repudiated the claim on account of negligence of the Petitioner, who failed to take care of the vehicle, in violation of the terms & conditions of the Insurance Policy. The Petitioner had not adduced any evidence or case law to prove that the Opposite Party was legally bound to indemnify the loss on “non-standard basis.” Petitioner also contended that the consumer cases should be dealt liberally and the State Commission had dealt with this case strictly like a criminal case. Bare reading of the impugned order shows that the State Commission had dealt with the matter in accordance with law. Admittedly the Petitioner left the key in the ignition

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hole at 6.20 am. Though his house was only 5 km away, he did not bother to bring the second key from his house and left the vehicle unattended on the road upto 7.40 pm. This shows sheer negligence on the part of the Complainant. Petitioner cannot take the benefit of his own wrong. He was supposed to take reasonable and proper care of his vehicle. The Opposite Party cannot be directed to pay for the wrong of the Complainant. Opposite Party repudiated the claim relying on the judgment of this Commission in “Devinder Kumar vs. NIC”, RP No.3840/2011, which was justified. Petitioner has failed to point out any illegality, material irregularity or jurisdictional error. 12. In view of the foregoing discussion, I do not find any reason to interfere with the impugned order of the State Commission in exercise of revisional jurisdiction. This Revision Petition is, therefore, dismissed. As a consequence, the Complaint is also dismissed with no order as to costs.
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