UNITED INDIA INSURANCE CO LTD vs NARESH KUMAR

THIS appeal is directed against the order dated 23.10.2001 passed by the District Consumer Disputes Redressal Forum, Rewari whereby while accepting the complaint of the respondent -complainant, direction has been given to the appellant -opposite party to release Rs. 31,000/ - to the complainant along with interest @ 9% to be calculated after two months from the date of theft of the motorcycle i.e., from 1.9.1999 till realisation.

NARESH Kumar -complainant had insured his motorcycle bearing registration No. HR -36B -0379, with the appellant -Insurance Company for a sum of Rs. 37,000 for the period from 25.2.1999 to 24.2.2000 vide cover note No. DR/98 -912247 dated 25.2.1999. On 1.7.1999 the father of the complainant Mr. Daulat Ram while leaving the said motorcycle outside the Medical Store went to purchase the medicines. At that time some unidentified youth sped away with the motorcycle. FIR No. 211 dated 1.7.1999 under Section 380, IPC was also got recorded with the Police Station City Rewari. On the same day intimation with regard to the theft of the motorcycle was given to the appellant. All the requisite documents for putting the claim, were sent to the appellant but the claim was repudiated on 14.8.2003 on the ground that terms of the insurance policy have been violated by the complainant. Aggrieved by the action of the appellant, the complainant filed the present complaint seeking the recovery of the amount of Rs. 37,000/ - along with interest @ 18% from the date of theft till the payment of compensation besides a sum of Rs. 5,000 on account of mental pain and agony and Rs. 5,000 as cost of litigation. The appellant contested the claim of the complainant. It was pleaded by it that on receipt of the report from the complainant, a Surveyor was appointed who reported that the key of the motorcycle was left in the motorcycle itself by the father of complainant when he had gone to purchase the medicines from the medical store located opposite main bus stand, Rewari. It was further stated that the terms and conditions of the Insurance policy required the complainant to take all reasonable steps to safeguard the motorcycle from the loss and damage and as the said terms and conditions have been violated by the complainant, repudiation of the claim was rightly made. Accordingly, it was prayed that the complaint merited dismissal.

THE District Forum on appraisal of the pleadings and evidence adduced on record accepted the complaint in order dated 23.10.2001 and issued directions noticed earlier. It is against this order, the present appeal has been filed by the appellant.

WE have heard the learned Counsel representing both the parties at length. At the threshold of the arguments, it has been strenuously urged by the learned Counsel for the appellant that the District Forum has not properly evaluated the evidence brought on record which has resulted in adverse findings against the appellant. The learned Counsel representing the respondent has justified the conclusion drawn by the District Forum on the basis of evidence on record. In order to appreciate the submission made, it will be appropriate to notice the findings of the District Forum recorded in para No. 6 of its order reads as under : ''Learned Counsel for respondent has relied heavily on the statement made by complainants father to Surveyor which is Ex. O.P. 3. He has drawn attention of the Forum to the last lines where it is written that ''GARI KI CHABI GARI MEIN LAGI THI''. However, Surveyor in his report which is Ex. OP 2 has stated that insured produced one key of motorcycle, although report also relies in the statement of insureds father that the keys were left in motorcycle. FIR suggests that a persuit was made, but in vain.''

IT is common case of the parties that on 1.7.1999, the father of the complainant had gone to Medical Store in order to purchase medicines, on motorcycle bearing registration No. HR -36B -0379. He left the motorcycle unattended and during the period he was at the Medical Store, an unindentified young man took away the motorcycle. In the FIR lodged with the police, which is first verison about the theft, it has not been stated by the father of the complainant that key of the motorcycle was left by him in the motorcycle. At the same time he has also not stated that he had locked the motorcycle and had taken the key of the motorcycle with him. The Surveyor has submitted his Report Ex. OP2. He has also recorded the statement of the father of the complainant wherein he has admitted that he left the key of the motorcycle in the motorcycle itself. At the same time he has also stated that one key of the motorcycle was produced by the complainant. The version of the father of the complainant that he had left the key in the motorcycle itself, ws not accepted by the District Forum mainly on the ground that this fact does not find mention in the FIR, lodged by the father of the complainant. This approach of the District Forum, as such, is not sustainable for number of reasons. No reason has been given by the District Forum as to reject the statement of the father of the complainant, recorded by the Surveyor. Again, no attempt has been made from the side of the complainant to produce any affidavit of Daulat Ram during the course of trial to show that his statement was wrongly recorded by the Surveyor. Further more, the fact that the key of the motorcycle was produced by the complainant himself, does not in any manner dislodge the verison of the father of the complainant recorded by the Surveyor. It cannot be ignored that normally two keys are provided for the vehicle when it is purchased and it was the duty of the complainant to have explained that it was not the another key, which was provided to him at the time of purchase of the motorcycle. In the FIR recorded it has not been stated that keys were left in the motorcycle. But from that fact alone no such inference can be drawn adverse to the Insurance Company. Once it is acceptd that the motorcycle was left unattended and not locked by the father of the complainant, the Clause 4 of the Insurance Policy would stand violated by the complainant. It has been provided therin that ''The Insured shall take all reasonable steps to safeguard the motorcycle 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 motorcycle or any part thereof or any driver or employee of the Insured in the event of any accident or breakdown the motorcycle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the motorcycle be driven before the necessary repairs are effected any extension of the damage or any further damage to the motorcycle shall be entirely at the insureds risk''.

THE above clause clearly states that the motorcycle should not be left unattended without proper precaution to be taken for the damage or loss. In view of the facts stated above, the observations made in case of Yeti Packers Pvt. Ltd. v. United Insurance Co. Ltd., I (1997) CPJ 417, would apply to the facts of the case. In that case the van was left unattended and without locking the same and for that reason, it has been held that the complainant has violated the Clause No. 3 of the Insurance Policy. In other case of United India Insurance Company Limited v. Shivali Cement Pvt. Ltd., III (1999) CPJ 264, the scooter was left unattended and the cash amount of Rs. 2,15,500, kept in the basket of the scooter, was stolen. The complainant filed the complaint but it was held that the complainant had violated the terms of the Insurance Policy and as the complainant, himself was negligent in not taking adequate care to see that the money which he kept in the basket of the scooter, was not stolen and the complaint on that account was dismissed. The ratio of the above mentioned cases fully applies to the facts of the present case. For the aforesaid reasons, the order of the District Forum under appeal is not sustainable and the same is set aside. While accepting the appeal, we dismiss the complaint. Appeal allowed.