1. The orders dated 07.05.2015 passed by the Consumer Disputes Redressal Forum-X, in CC-799/08 in the matter of Rakesh Sharma and two others versus M/s Reliance General Insurance Company, New Delhi, holding the insurer deficient in rendering service to the insured and directing the Insurance company to pay a sum of Rs. 6,63,324/- alongwith 9% interest from 02.07.2008, the date on which repudiation was done as also Rs. 50,000/- compensation for mental harassment and Rs. 10,000/- as litigation cost, has been assailed in this appeal filed before this Commission under Section 15 of the Consumer Protection Act 1986, the Act, by the Insurance Company, for short appellant, against Sh. Rakesh Sharma and two others, hereinafter referred to as respondents, alleging that the order so passed is not legally maintainable and bad in law and praying for its setting aside.
2. Facts of the case necessary for the adjudication of the appeal are these.
3. The respondents/complainants had alleged in the complaint that Mr. Radhey Shyam Sharma, the original insured, had purchased a vehicle and got the vehicle insured (hereinafter referred to as “the insured vehicle”) with appellant/OP for the period from 09.07.07 to 08.07.08 which was cancelled and subsequently the fresh 2nd Cover note was issued on 31.10.2007 vide Insurance Policy No. 1302372340100004 on payment of Final Premium of Rs. 18,275/-. The policy was for the period from 31.10.2007 to 31.10.2008. However the insured vehicle was stolen on 03.12.2007 by some unknown persons and a complaint to said effect was lodged with the concerned police station. The respondents/complainants also alleged that the original insured had informed the appellant/OP about the theft of the insured vehicle and also submitted requisite documents for processing his claim. However, the appellant/OP had failed to pay the insurance amount without any sufficient cause or reason. The claim preferred was for payment of insurance amount of the insured vehicle, a sum of Rs. 10,00,000/- as compensation on account of mental pain, harassment and sufferings and a sum of Rs. 30,000/- towards litigation expenses.
4. The claim not having been approved, a complaint was filed before the District Forum, which complaint was disposed of with directions to the appellant despite they having resisted the complaint on the ground that the complainant/respondent had breached the condition contemplated in the policy. This led to filing of the appeal praying for setting aside the order on the ground that the impugned order was not maintainable. Secondly timely intimation of the loss of the vehicle was not sent to the insurance company, an act in violation of the condition of the policy. Thirdly, the original insured himself had committed breach of terms and conditions of the insurance policy as the driver of the insured vehicle had failed to take reasonable steps to safeguard the vehicle from loss or damage and sufficient care was not taken, which a prudent man ought to have taken to avoid theft of the vehicle. Fourth, it was found during investigation that the driver had left the key in ignition switch of the insured vehicle itself after leaving the same unattended on the road at about 3:00AM which facilitated the Commission of theft. In these circumstances, the appellant/OP was well within their right in not allowing the claim.
5. The respondents were noticed and in response thereto they have filed reply resisting the appeal stating that there has been no breach of condition. Their claim was just and legal and that there is no infirmity in the orders passed. They have denied the contentions raised in the appeal.
6. This appeal was listed before this Commission for final hearing on 06.02.2020 when the counsel for the appellant appeared and advanced his arguments praying for setting aside the order impugned here on the ground that the repudiation done was within the four corners of the policy. None appeared on behalf of the respondents even in the second call. Further one week time till 13.02.2020 was allowed to the respondents to advance and conclude their arguments but they did not appear even in the extended time. Accordingly I proceed to finalise the judgement based on the available records.
7. Short question for adjudication in this appeal is whether the complainant/respondent is entitled to the compensation and indemnification within the parameters of the policy due to the loss of the car. Issue is loss of the car. Point for determination is whether there was any carelessness on the part of the complainant in the matter of loss of the car and thus acting contrary to the terms of the policy in which case repudiation done would be justified.
8. I may in the first instance advert to the repudiation done as contained in the letter of the appellant dated 02.07.2008 addressed to the respondents. The relevant extracts of the letter is as under:-
This has the reference to the above reported claim lodged by your good self towards theft of the vehicle. As per the document submitted by your good self, following observation are made:
You had deliberately left the key in the ignition lock, thus leaving your vehicle in the drivable condition, which is a gross negligence and it has directly contributed to the theft of vehicle. Therefore, it can be concluded that you have failed to take minimum reasonable safeguard of your vehicle from loss which is against the term and policy condition.
Hence your aforesaid claim stands repudiated.
9. The relevant portion of the terms and conditions is reproduced as under:-
“The insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage...........”
10. The appellant had advanced two folded grounds assailing the orders of the District Forum, approving the claim of the complainant/respondent, namely,
a. There has been 10 days delay in intimation to the appellant about the loss of the insured vehicle and, secondly,
b. The complainant/respondent or his agent (Driver) lacked in observing the due and necessary precaution in the maintenance of the vehicle and thus not entitled for the claim as prayed for.
11. I have read and re-read the contents of the repudiation letter. It nowhere envisage delay in intimation regarding theft of the vehicle as a ground for repudiation. The ground not taken up earlier relying on the judgement of the Hon’ble Supreme Court of India in the matter of Saurashtra Chemicals Ltd. (Presently known as Saurashtra Chemicals Division of Nirma Ltd.) versus National Insurance Co. Ltd. in Civil Appeal No. 2059 of 2015 decided on 13.12.2019 cannot be taken at the time of arguments before the Consumer Forum, holding that the Insurance Company cannot raise delay as ground for repudiation for the first time before the Consumer Forum. If the Insurer has not taken delay in intimation as a specific ground in the letter of repudiation, they cannot do so at the stage of hearing of the Consumer Complaint. Secondly, the Hon’ble Supreme Court of India in the matter of Gurshinder Singh versus Shriram General Insurance Co. Ltd. and Anr. in Civil Appeal No. 653/2020 arising out of SLP 24370/15, decided on 24.01.2020 is pleased to hold that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a Final Report after the vehicle was not traced and when the Surveyor the investigation appointed by the Insurance Company have found the claim of the theft to be genuine then mere delay in intimating the Insurance Company about the occurrence of the theft cannot be a ground to deny the claim of the insured. Accordingly this ground raised by the appellant not having been taken while repudiating the claim fails.
12. The next argument of the appellant that necessary precaution was not observed in maintenance of the insured vehicle has to be examined. It is an indisputed fact that the keys of the vehicle remained inside when the driver came out. Whether this act amounts to breach of condition in which case the insurer would be under no obligation to approve the claim is to be determined. The law on the subject as settled is as under:-
13. The Hon’ble NCDRC in the matter of Oriental Insurance Co. Ltd. versus Shyam Sunder as reported in III  CPJ 567 (NC) was pleased to reject the insurance claim of the complainant based on the fact that the driver was negligent having left the ignition key in the ignition socket.
14. The Hon’ble NCDRC in yet another matter, in the matter of Oriental Insurance Co. Ltd. versus K.K. Valsalan, Revision Petition 4521 of 2013 decided on 07.05.2004 [MANU/CF/0233/2014] is pleased to hold as under:-
Normally, both ignition keys are never kept together in the unattended vehicle and theory of theft of the vehicle is suspicious. Petitioner has not committed any deficiency in repudiating claim and learned District forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal and Revision Petition is to be allowed.
15. The ld. Counsel for the appellant placed reliance on yet another matter, Keer Hotels Pvt. Ltd. versus TATA AIG General Insurance Co. Ltd., Revision Petition 2870/15 decided on 03.04.2018 [MANU/CF/0256/2018] disposed of by the Hon’ble NCDRC holding as under:-
It is an admitted fact that the Complainant had left the engine in an idling condition and parked the car at Ville Parle leaving the keys in the engine. The Maxim "sicutere tuo ut alienum loedas"- A person is held liable at law for the consequence of his negligence is squarely applicable to the facts and circumstances of the case. Leaving of the keys in the ignition of the car and further leaving the engine in an idling condition, can be safely construed to be a negligent act and therefore, is a breach of condition No.4 of the policy. This lapse on the part of the driver can be inferred to be a willful default of the subject condition of the policy. Having considered the instant case on the touchstone of the afore-noted broad principles to be borne in mind while examining the claim of an insured, we are of the opinion that the claim of the Petitioner must fail on the short ground that there was a breach of the afore-extracted condition incorporated in the policy.
16. Hon'ble National Commission in the matter of M/s New India Assurance Co. Ltd. vs. Sh. Ajit Kumar in Revision Petition No.1896 of 2008 had also referred to earlier judgment of Jagdish Parshad vs. ICICI Lombard General Insurance Co. Ltd. (II(2013) CPJ 578 (NC) wherein National Commission had taken a view that leaving the vehicle
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unattended and unlocked was itself sufficient to hold that there was violation of terms and conditions of the policy. Here not only was the vehicle left unlocked but with engine running. Therefore, may be for different reasons, but we agree with the District Forum and do not admit the appeal. 17. On the other hand the ld. Counsel for the respondents did not appear to defend the appeal even in the extended time. This appeal since pertains to the year 2015 needs to be disposed of sooner than later. 18. Having regard to discussion done and the legal position explained I am of the considered view that there is no infirmity in the repudiation done by the Insurer. The judgement and orders passed by the District Forum under these circumstances cannot sustain and thus the appeal succeeds and the said order is set aside, leaving the parties to bear the cost. 19. Ordered accordingly. 20. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. A copy of this order be forwarded to the District Forum for information. 21. The FDR of deposited be returned to the appellant and file be consigned to records.