M. Shreesha ORDER
M. Shreesha, Member
1. Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (in short "the Act"), is to the order dated 30.07.2016, in Appeal No. RBT/A/15/690, passed by the Maharashtra State Consumer Disputes Redressal Commission (in short "the State Commission"). By the impugned order, the State Commission has allowed the Appeal, directing the Insurance Company to pay to the Complainant the claim amount of 10,75,250/-, with interest @ 9% p.a. from the date of filing of the Consumer Complaint. The Insurance Company has also been directed to pay a compensation of 50,000/- and cost of 20,000/- to the Complainant.
2. For the sake of convenience, the Petitioner hereinafter is referred to as "the Insurance Company".
3. The brief facts material to the case are, that on 20.06.2010, the Complainant's driver parked the vehicle at village Veral and locked it in front of the house of the cleaner Shri Sunil Nilesh Gaikwad. On 21.06.2010, at about 2:30 a.m., the Complainant's driver informed the Complainant about the loss of the said vehicle and an FIR was lodged at Khed Police Station. The Complainant's claim with the Insurance Company was repudiated on 07.05.2011, on the ground that the Complainant has failed to exercise due care and caution in safe guarding the insured vehicle and has therefore, violated clause 5 of the terms and condition. The Complainant approached the District Forum seeking direction to the Insurance Company to pay 11,00,000/- towards price of the vehicle together with interest, compensation and costs.
4. The Insurance Company resisted the Complaint justifying the repudiation on the plea that the Complainant had himself informed the surveyor that the door of the vehicle did not have window glass and was also not locked. Similar statement was given by the driver at the time of lodging the FIR before the Police Station on 21.06.2010. It was stated that when the vehicle was without glass and the door without a lock, parked in an open space, without appointing someone as security personnel for the vehicle, the Complainant had intentionally violated clause 5 of the contract and therefore, no deficiency of service could be attributed to them.
5. The District Forum dismissed the Complaint observing that the driver of the vehicle had accepted that the parked vehicle had no glass and was left unlocked and that this negligence had invited the possibility of theft.
6. Aggrieved by the said order, the Complainant preferred an Appeal before the State Commission, which, relying on the decision of the Hon'ble Apex Court in National Insurance Company Limited Versus Nitin Khandelwal, MANU/SC/7639/2008 : (2008) 11 SCC 259, allowed the Appeal.
7. It is not in dispute that the theft took place during the validity period of the Insurance policy and that the incident was duly intimated to the Insurance Company and an FIR was also filed in the concerned Police Station. The brief point that falls for consideration is whether the Insurance Company was justified in repudiating the claim by invoking clause 5 of the terms and conditions on the ground that the Complainant had not taken due care and caution while parking the vehicle and invited theft.
8. Clause 5 of the said terms and conditions is reproduced hereunder:
"5. The Insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle insured or any part thereof any driver or employee of the Insured. In the event of any accident or breakdown, the vehicle insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured be driven before the necessary repairs are effected, any extension of the damage or any further damage to the vehicle shall be entirely at the Insured's own risk."
9. The specific pleading of the Insurance Company in para 11 of the Written Version, that when the vehicle was parked in an open space and the door had no lock, the Complainant ought to have appointed someone as security personnel for the vehicle is completely unjustified. It is pertinent to note that the "standard reasonable care" has not been specifically defined in the policy, for the Insurance Company to repudiate the whole claim on the basis of "proper precautions" not being taken. The stand of the Insurance Company that the Complainant, in a contingency situation, where, there is breakdown of the insured vehicle, should appoint a security personnel to take care of the vehicle, is truly beyond any reasonable expectation and such an argument only goes to show that the term "reasonable care", is being construed to the advantage of the Insurance Company.
10. The Hon'ble Apex Court in National Insurance Company Limited Versus Nitin Khandelwal MANU/SC/7639/2008 : (2008) 11 SCC 259, observed in para 13 as under:
13. In the case in hand the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insure. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft."
11. Keeping in view the judgment of the Hon'ble Apex Court and also having regard to the fact that there was a statement made by the driver that the door was not locked and there was no window glass, we are of the considered opinion that the claim can deserves to be allowed on non-standard basis as there is no fundamental breach of any of the conditions stipulated in the contract.
12. Hence, this Revision Petition is allowed in part reducing the decretal amount awarded by the State Commission to 75% of 10,75,250/-, to be paid by the Insurance Company to the Complainant, with interest @ 9% p.a. from the date of repudiation till the date of realization, within four weeks from the date of receipt of this order, failing which, the amount shall attract interest @ 12% p.a. for the respective period. Since the interest @ 9% has already been awarded by way of damages, we set aside the compensation amount of 50,000/- awarded by the State Commission and retain the costs of 20,000/-.
13. In the result, this Revision Petition is allowed in part to the extent indicated above.
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