MARIA SELVAM vs MANAGER, ROYAL SUNDARAM ALLIANCE

This revision petition has been filed by the petitioner against the order dated 13.09.2013 passed by the Tamil Nadu State Consumer Disputes Redressal Commission, Madurai Bench (in short, ''the State Commission'') in Appeal No. 274/2012 - The Manager, Royal Sundaram Alliance Ins. Co. Ltd. Vs. Maria Selvam & Anr. by which, while allowing appeal, order of District Forum allowing complaint was set aside.

Brief facts of the case are that complainant/petitioner is the owner of the Maruthi Omni Van bearing registration No.TN-76-B-6602 and the complainant purchased the vehicle after availing loan of Rs.1,94,000/- from Tamilnadu Mercantile Bank and spent Rs.70,000/- on extra fittings. On 25.11.2008, two unknown persons booked the vehicle to go to Trivandrum Airport from Thenkasi Bus-stand. The driver parked the vehicle near Thenmalai, near a tea-stall and went to the tea-stall at Kulathupuzha. Suddenly, the two persons who engaged the vehicle, took away the vehicle and immediately the driver intimated the same to Anjal Police Station, Kerala State and searched for the vehicle but they could not trace the vehicle. The complainant lodged a complaint with Anjal Police Station but the Kerala Police refused to register a case. Hence, the complainant lodged a complaint with Thenkasi Police Station on 27.11.2008 and the police registered a case in crime No.1191/2008 and he intimated the same to the 1 opposite party/Respondent No.1/insurer st of the vehicle by sending a registered post on 28.11.2008. The 1st opposite party required the complainant to produce non-traceable certificate from police, final court order etc. Since the police did not issue non-traceable 3certificate, the complainant filed a petition before the Hon''ble High Court and obtained non-traceable certificate. In spite of sending all the necessary documents, the 1st opposite party did not come forward to settle the claim. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP No. 1 resisted complaint and submitted that theft of the vehicle was reported belatedly only on 01.12.2008. The vehicle was unlocked and unattended near a tea-stall and the vehicle was later found missing. The theft was reported to police belatedly only on 27.11.2008 after a delay of 2 days and the 1st opposite party was informed about the loss of vehicle after a delay of 5 days and therefore there is violation of policy conditions hence the complainant''s claim was repudiated for valid reasons and there is no deficiency in service on their part and prayed for dismissal of complaint. Learned District Forum after hearing both parties allowed complaint and directed OP No. 1 to pay Rs.1,73,000/- and further directed to pay Rs.30,000/- as compensation and Rs.5,000/- as cost of litigation. OP filed appeal before learned State Commission and learned State Commission vide impugned order allowed appeal and dismissed complaint against which, this revision petition has been filed.

None appeared for Respondent No. 2 even after service of notice and he was proceeded ex-parte.

Heard learned Counsel for the parties and perused record.

Learned Counsel for the petitioner submitted that inspite of satisfactory explanation for delay in lodging FIR and intimation to OP, learned State Commission committed error in allowing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

Perusal of record indicates that vehicle was stolen on 25.11.2008 whereas FIR at Police Station was lodged on 27.11.2008. Learned Counsel for petitioner submitted that as concerned Police Station refused to register FIR in Kerala State, FIR was lodged after two days in Tamil Nadu. Perusal of aforesaid FIR does not reveal that Police Station of Kerala State refused to register FIR and only this fact has been mentioned that he intimated to the Police Station on telephone and later on enquired from Police Station which apprised that they did not get any information about the vehicle. Lodging FIR in Tamil Nadu has no significance as FIR could have been lodged only in Police Station in whose area vehicle was stolen, as observed by this

Commission in I (2004) CPJ 531 (NC) - Ramprasad Vs.Bajaj Allianz General Insurance Co. Ltd. & Anr . and in such circumstances, it can be held that so-called FIR being meaningless, complainant failed to lodge FIR before the appropriate Police Station.

As far intimation to OP is concerned, learned Counsel for the petitioner has drawn our attention towards copies of acknowledgments which reveals that intimation was despatched on 28.11.2008 sent to OP by post which was received by them on 1.12.2008 and 2.12.2008. Admittedly, there is delay of 3 days in intimation to Insurance Company. Learned State Commission has not committed any error in allowing complaint on account of delay in lodging FIR and intimation to OP.

Perusal of record further reveals that driver of complainant left ignition keys in the vehicle and returned after taking tea and found that vehicle was missing. Leaving ignition keys in the vehicle and going to tea-stall in the night for taking tea and returning after sometime can be said that complainant''s driver left the vehicle unattended without proper precautions and thus, has violated Condition No. 5 of the insurance policy which runs as under:

Condition No. 5 :

" The insured shall take all reasonable steps to safeguard the vehicle from loss of damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle 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".

It was held in R.P. No. 3251 of 2013 - Oriental Insurance Co. Ltd. Vs. Shyam Sunder that if complainant has violated Condition No. 5 of the policy, OP does not commit any deficiency in repudiating claim of the complainant.

In the light of aforesaid discussion, revision petition is liable to be dismissed.

Consequently, revision petition filed by the petitioner is dismissed with no order as to costs.